Colon v. Tompkins Square Neighbors, Inc.

• Decision Date: 26 June 1968
• Docket Number: No. 68 Civ. 1401.,68 Civ. 1401.
• Citation: 289 F. Supp. 104
• Parties: Rosalyn COLON et al., Plaintiffs, v. TOMPKINS SQUARE NEIGHBORS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

289 F. Supp. 104

Rosalyn COLON et al., Plaintiffs, v. TOMPKINS SQUARE NEIGHBORS, INC., et al., Defendants.

No. 68 Civ. 1401.

United States District Court S. D. New York.

April 26, 1968.

Opinion on Reargument June 26, 1968.

Harold J. Rothwax, New York City, Nancy E. LeBlanc, Michael B. Rosen, New York City, of counsel, for plaintiff.

Szold, Brandwen, Meyers & Altman, New York City, Daniel M. Sandomire, Joseph Z. Epstein, New York City, of counsel, for defendant.

MEMORANDUM

TENNEY, District Judge.

Plaintiffs move this Court pursuant to Rule 34 of the Federal Rules of Civil Procedure for an order permitting the commencement of discovery proceedings prior to the expiration of twenty (20) days from the filing date of the complaint herein.

Plaintiffs, members of a class composed of Negro and Puerto Rican Welfare recipients, all of whom allege that they are presently occupants of substandard or inadequate housing, are applicants for admission to Haven Plaza, a middle-income housing project located on Avenue C between 12th and 13th Streets in the Borough of Manhattan, City of New York, consisting of 371 apartment units.

Defendant Tompkins Square Neighbors, Inc. (referred to hereinafter as "Defendant"), a redevelopment company organized under Article V of the New York Private Housing Finance Law, McKinney's Consol.Laws, c. 44-B, is a non-profit organization which owns and operates Haven Plaza. The corporate stock therein is owned by 6 churches and church-related organizations of that neighborhood.

Initially, the housing company purchased the project site from the City of New York, the site being part of an area designated for urban renewal by the City, State and Federal governments. The development of this project allowed the company certain tax exemptions from the City as well as financial assistance in assuming the burden of the land purchase and construction costs in the form of an FHA-insured mortgage under Section 221(d) (3) of the National Housing Act, 12 U.S.C. § 1715l(d) (3).

The instant complaint seeks a declaratory judgment declaring unconstitutional and illegal, and for an injunction enjoining, certain policies and practices of defendant in its procedures for the selection of applicants for admission to the project. Specifically, plaintiffs allege that: (1) Defendant has violated the Equal Protection Clause of the Fourteenth Amendment in that its admission policy is structured on a quota system based on race and on applicants' status as Welfare recipients; and (2) Defendant has violated the Due Process Clause of the Fourteenth Amendment by virtue of its failure to publish a list of objective standards which defendant uses as a guideline for determining tenancy eligibility.

Plaintiff moved on April 10, 1968, before Judge Tyler of this court, for a temporary injunction enjoining defendant from renting any of the remaining apartments until such time as the issues in the within action are determined on the merits, so as to reserve the present vacancies for plaintiffs herein in the event that they prevail in the outcome of the instant litigation. Judge Tyler, assuming arguendo the jurisdiction of this court, denied plaintiffs' motion on the grounds that insufficient evidence was presented upon which the relief sought could be justified at that time.

In an effort to obtain sufficient evidence upon which a temporary injunction could be granted, plaintiffs, on April 18, 1968, brought on the within motion before this Court, specifically requesting an order providing for inspection and copying of:

1. All applications and requests for applications to Haven Plaza apartments.

2. All rules, regulations, directives, memoranda, letters, and correspondence relating to policies and procedures for the processing of applications and the determination of eligibility for admission.

3. All books, records, or other documents relating to the taking of applications, acceptance of applications and rejection of applications.

4. All correspondence between the defendant Tompkins Square Neighbors, Inc., its agents, servants, employees, and attorneys, and the defendant JASON R. NATHAN, the City Agency, its agents, servants, and employees, relating to eligibility standards governing the admission of applicants and the processing of applications for Haven Plaza apartments.

Defendant opposes this motion for discovery and inspection on the grounds that the information sought is highly confidential, and to subject this material to public exposure would destroy that element of candor necessary to a proper and effective system of selection. (Dano Affidavit, p. 2.)

Although it is the opinion of this Court that many of the documents sought to be discovered do not fall within the scope of confidentiality, nevertheless, I am constrained to deny the motion purely on the ground that plaintiffs are pursuing their cause of action in the wrong forum.

The newly-enacted Civil Rights Act of 1968, Pub.L. 90-284, § 810(d) (April 11, 1968), 82 Stat. 73, clearly states:

"Provided, That no such civil action may be brought in any United States district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title."

Ever since July 1, 1950, New York State has prohibited discrimination in its publicly-assisted housing accommodations against any person because of race, color or creed. New York Civil Rights Law, McKinney's Consol.Laws, c. 6, § 18-c. That section specifically provides:

"It shall be unlawful:

1. For the owner of any publicly assisted housing accommodation to refuse to rent or lease or otherwise to deny to or to withhold from any person or group of persons such housing accommodation because of the race, color, religion, national origin or ancestry of such person or persons."

Further, Section 18-d of that statute provides in pertinent part that:

"1. Any person aggrieved by a violation of section eighteen-c of this chapter * * * shall have a right of action in any court of appropriate jurisdiction for restraint of such violation and for other equitable remedies including such affirmative relief as may be necessary to undo the effects of such violation.

2. Any person aggrieved by a violation of section eighteen-c of this chapter shall in addition have a right of action in any court of appropriate jurisdiction for damages caused by such violation."

Thus, it is clear that the law of the State of New York prohibiting discrimination in housing and providing redress of grievances thereunder is as broad as, if not in some respects broader than, the 1968 Federal legislation. Although plaintiffs argue, however, that the instant action was brought in this court prior to the enactment, on April 11, 1968, of the new Civil Rights Act, it remains the opinion of this Court that even under 42 U.S.C. § 1983, in the exercise of its judicial discretion, jurisdiction of the instant action should be declined.

The United States Supreme Court in Monroe v. Pape, 365 U.S. 167, 173-174, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), set out, as follows, the purposes for which 42 U.S.C. § 1983 was enacted: (1) To prohibit invidious legislation by states against the rights or privileges of citizens of the United States; (2) To provide a remedy where state law is inadequate; and (3) To provide a Federal remedy where the state remedy, though adequate in theory, is not available in practice. Although the Court stated that "the federal remedy is supplementary to the state remedy, and that the latter need not be first sought and refused before the federal one is invoked" (emphasis added), Monroe v. Pape, supra at 183, 81 S.Ct. at 482, the Court never intended to provide alternate forums, the choice of which depended solely on the whim of the plaintiff with total disregard for the adequacy of state mechanisms. Clearly, in Monroe, to pursue the state remedy would have been nothing more than a study in futility. Similarly, in McNeese v. Board of Education, etc., 373 U.S. 668, 674-675, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), the Court stated that it was "by no means clear that Illinois law provides petitioners with an administrative remedy sufficiently adequate to preclude prior resort to a federal court for protection of their federal rights." The Court, in McNeese, describing the provision of the Illinois School Code, which provides for grievances for persons alleging discriminatory practices in the public schools, expressed its opinion that the provision was so loose on its face that "it would be anomalous to conclude that such a remedy forecloses suit in the federal courts * * *." Id. at 675, 83 S.Ct. at 1437. This is clearly not the situation in the action before this Court.

The State of New York, almost two decades ago, enacted legislation for the prevention of discrimination in the area of publicly-assisted housing accommodations which is as progressive as any legislation, both state or federal, enacted to date. In view of this fact and in view of the specific wording of the Civil Rights Act of 1968, which provides that the federal district courts should not entertain a suit thereunder where the person aggrieved has as effective a judicial remedy under the state or local fair housing laws, it is the decision of this Court, in the exercise of its judicial discretion, to abstain from assuming jurisdiction in this case.¹

After due consideration, and for the reasons set forth above, plaintiffs' motion is denied and the complaint dismissed.

So ordered.

OPINION ON REARGUMENT

Plaintiffs herein move for reargument of a decision of this Court which denied a motion by plaintiffs pursuant to Rule 34 of the Federal Rules of Civil Procedure for an order permitting the commencement of discovery proceedings prior to the expiration of twenty (20) days from the filing of the complaint, and...